Opinion
WWMFA104010341S
03-14-2018
Lisa DUFRESNE v. Gerald E. DUFRESNE
UNPUBLISHED OPINION
OPINION
Angelo L. dos Santos, Senior Judge
The defendant, Gerald E. Dufresne, Jr., seeks to modify (continue) supervised visitation with his daughter and to contact her by telephone (Motion # 157). The plaintiff, Lisa Blasdell, seeks an order, postjudgment, pursuant to Practice Book § 25-26(g), requiring the defendant in future motions to ask the court for leave to file additional motions in the case setting forth the specific factual and legal basis for the claimed modification and the plaintiff seeks counsel fees in connection with her defense of the defendant’s motions. Hearings were held before the court on October 18, 2017, and November 15, 2017. The plaintiff was represented by counsel and the defendant was self-represented. Witnesses testified. The record closed on November 15, 2017, for leave of the court to render a written decision on the motions.
FINDINGS OF FACTS
The plaintiff and the defendant intermarried on October 14, 2006, in Marshfield, Massachusetts. The parties have one child, issue of the marriage, whose name is Madeline A. Dufresne, born on January 13, 2008. The child resided with both parents until April 18, 2011, when she was three years old. A decree dissolving the marriage of the parties was issued on April 29, 2011, by the court (Fuger, J.). In the decree, the parties were granted joint custody. The parties entered into an extensive and detailed parenting plan that provided for shared parenting time with the minor child. At the time of the dissolution, the defendant had obtained a medical retirement and social security disability. He was disabled from the effects of Lyme disease ... (See file, # 126.)
A hearing was held before the court (Graziani, J.) on July 29, 2015, where sole custody of the minor child was granted to the plaintiff. Access to the child was to be by mutual agreement and the parties were ordered to communicate through the Family Wizard program.
The court, on October 5, 2016, after a hearing on the defendant’s motion to open or modify (Motion # 144) the judgment, ordered, as follows:
1. The defendant shall have supervised visitations at the supervision agency, Kids Safe in Rockville.
2. The defendant shall reactivate his family wizard account to communicate with the plaintiff about the child. The plaintiff shall also reactivate her account, if it is deactivated. Both parties shall cooperate and communicate through this medium or a different medium by mutual agreement.
3. The matter is referred to the Family Relations Division to monitor supervised visitation. Both parties shall cooperate with Family Relations.
4. The plaintiff shall encourage the child to participate in the visitations. If the agency is not agreed by the parties, the parties must use Kids Safe or another agreed upon place.
5. The visits must be consistent and scheduled by parents on a regular basis.
After the October 5, 2016 hearing, Family Relations set up five visits at the Access Agency in Danielson, Connecticut, where the child visited with her father on five occasions. During his testimony, the defendant described the visits with his daughter as positive for him and the child. The defendant testified that he helped to raise their daughter from birth and that he had a good relationship with his daughter. He was emotional when he saw his daughter after not seeing his daughter for about two years. The visits lasted approximately one hour each. He admitted that on one occasion he brought photographs to share with his daughter which apparently were not allowed. After realizing his mistake, he took the photographs back to his vehicle. In addition, he brought hot chocolate to his daughter, which also was not allowed during his visits with her. He became upset about this rule and exchanged words with the staff at the Access Agency, but not in front of the child. The defendant has anger issues.
The defendant testified that he was happy to see his daughter and that she was happy to see him. They spoke and played games together. The child appeared to be comfortable with her father.
Following the supervised visits, a report was produced by the Access Agency but was not introduced into evidence. The Family Relations Counselor who set up the supervised visitation read from the report. None of the assertions contained in the report were subject to cross-examination because none of the individuals involved in the supervised visits came to court to testify on their observations.
After the five supervised visits, the parties agreed that the matter would be referred to the TIPS program and the court entered orders in connection with their agreement. Apparently, a clinical social worker met with the parties, the child and then issued a report. The report was not entered into evidence, but it was testified to by the Family Relations Counselor. The clinical social worker, Gregg LePage, who spoke with the parties and the child, was never called to testify about his report. He was not subjected to cross examination.
During the hearings on the pending motions, the plaintiff never testified. She never testified about her concerns for her daughter or about communications she may have had with her daughter about the visits and after the visits with the defendant. Although directed by the court to communicate with the defendant through Family Wizard, she never responded to his attempts to communicate with her. In his contempt citation, the defendant, who is self-represented, did not allege the plaintiff’s failure to communicate with him as a reason for a contempt citation. After some visits, the plaintiff set up play dates for her daughter on the same dates the father was to have supervised visitation.
The child’s counselor, Patricia Hempel, testified. She holds a Master’s degree in Art Therapy and is licensed in Mental Health and possesses a National Counseling Certification. She testified that she has counseled the child once a week since September or October 2015. She is compensated for her services by the plaintiff’s medical insurance.
Hempel testified that on three different occasions she has utilized Trauma Forensic Cognitive Behavior Therapy. Essentially, the child must relive the event when her father was taken away in an ambulance after he had suicidal ideations. During the event, the defendant told the plaintiff to come and pick up their daughter because he felt that he was not capable of taking care of her.
Since the event, the defendant has received counseling and is fully compliant with his prescribed medications. As a former veteran, he counsels veterans who suffer from post-traumatic stress disorder (PTSD) and is around children whose veteran parent has PTSD. Presently, the defendant does not present a danger to his daughter.
Hempel testified that it was not in the child’s best interest to have contact with her father at the present time including the elimination of telephone contact with the defendant and that the child should not have further contact until she is twenty-three years old when her brain would be fully developed. The court disagrees.
DISCUSSION
The defendant seeks a modification (Motion # 157) of the prior order to allow telephone calls with their child and visitation. " The court has continuing jurisdiction over a custody decree and the noncustodial parent retains the option to move to modify custody based on a substantial change in circumstances affecting the welfare of the children." Cookson v. Cookson, 201 Conn. 229, 236 (1986). " The burden is on the party seeking modification to show the existence of a substantial change in circumstances." (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn.App. 194, 204 (1995); Emerick v. Emerick, 28 Conn.App. 794, 802, cert. denied, 224 Conn. 915 (1992); see also Walshon v. Walshon, 42 Conn.App. 651 (1996) (affirming dismissal of plaintiff’s motion for modification for failure to make out a prima facie case of a material change in circumstances).
A finding of a material change in circumstances must be based on circumstances that have arisen since the previous order of custody. " If such a material change is found, the court may then consider past conduct as it bears on the present character of a parent and the suitability of that parent as custodian of the child." Simons v. Simons, 172 Conn. 341, 342-43 (1977). The court must then make the necessary findings that a change of custody would be in the best interest of the child. The defendant suffers from PTSD and the effects of Lyme disease. He has received counseling and takes prescribed medications for the PTSD. He counsels fellow veterans regarding PTSD and is around children. These are changed circumstances.
The incident where he had suicidal ideation, the defendant recognized his illness and asked the plaintiff to pick up their child. The child saw her father taken away by ambulance. That incident mushroomed into the present state of the case. The court is not convinced that the defendant presents a danger to his daughter.
The defendant has received counseling since the incident and is taking prescribed medications for his PTSD. The defendant has anger issues, but these should not preclude him from seeing his child.
The child’s counselor is doing more damage than helping the child. She continues to reinforce the traumatic event with the child by repeating the event when the defendant went by ambulance to the hospital. The court concludes that it is not in the best interest of the child to continue counseling with her counselor.
The court, on October 5, 2016, after a hearing, ordered that the defendant have access to their child at a supervising agency, Kids Safe in Rockville. Because it was not feasible to have visitation at Kids Safe, the Family Relations Counselor, with the cooperation of both parents, scheduled five visits between the defendant and their child at Access Agency in Danielson.
The court ordered the parties to communicate with one another through the Family Wizard application. Since the court’s orders, the defendant attempted to communicate with the plaintiff through this medium, but the plaintiff has refused to communicate with the defendant. Lastly, the court ordered that the visits must be consistent and scheduled by the parties on a regular basis. Although the court’s orders were entered on October 5, 2016, the defendant has only seen his child five times. The intent of the court’s October 5, 2016 order was not to limit the defendant’s access to his daughter to five occasions.
The plaintiff, who did not testify during the hearing, relied on hearsay and double hearsay to justify denying the defendant access to their child in the future. " Hearsay means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted." (Internal quotation marks omitted.) Walker v. Housing Authority, 148 Conn.App. 591, 600 (2014). Hearsay is generally inadmissible. See Conn. Code Evid. § 8-2. The reason for the hearsay rule is because hearsay testimony is unreliable. See State v. Heredia, 139 Conn.App. 319, 331 (2012) (offered testimony properly deemed unreliable when it " constituted hearsay within hearsay and was corroborated only by other hearsay statements rather than established facts" ), cert. denied, 307 Conn. 952 (2013). Although the Family Relations Counselor testified about what allegedly occurred at Access Agency and the testing by TIPS, she was not present during these events. Her testimony relied solely on hearsay events and occurrences outside her observations. Finally, the Family Relations Counselor testified that as a general case manager, which was the role assigned to her by the court, was to facilitate and direct the parties to the services offered in the community and not to make assessments or recommendations on the case at issue. The court does not credit her testimony concerning Access Agency or TIPS because she did not observe the alleged events contained in the Access Agency report and the TIPS report that were never introduced into evidence.
A failure to testify can be the basis for a negative inference. See Sosin v. Sosin, Superior Court, judicial district of Fairfield, Docket No. FA-03-0401416 (March 22, 2005, Owens, J.).
Young children need encouragement from both parents to continue their relationship with their parents. The child, who spends most of her time with the plaintiff, is not being encouraged by the plaintiff to continue to see her father. The plaintiff’s continuing counseling for the child with Patricia Hempel, and her setting up playdates on the days the defendant had supervised visitation serve only to alienate the child from her father. Alienation of one parent by the other from the child and exposing the child to conversations that are critical of the other parent may constitute a substantial change in circumstances. See Naumann v. Naumann, Superior Court, judicial district of New Haven, Docket No. FA-15-6057847-S (April 8, 2016, Shluger, J.); Fiore v. Deruosi, 88 Mass.App.Ct. 1112 (2015). Coercive or manipulative acts designed to alienate the other parent and interfere with his or her relationship with the child are proper considerations regarding the best interests of the child. See Eisenlohr v. Eisenlohr, 135 Conn.App. 337, 348 (2012).
The plaintiff has failed to show by credible evidence that the supervised visits should end. In fact, the supervised visits ought to continue and eventually lead to unsupervised visits. The defendant is willing to continue with supervised visits and wants telephone contact with his daughter, which appears reasonable under the circumstances. The court concludes that it is in the child’s best interest to continue to have access/visitation with her father. The motion to modify is granted.
The plaintiff seeks an order post-judgment to require the defendant before filing other motions to submit an affidavit and request for leave from the court to file such motions pursuant to Practice Book § 25-26(g) (Motion # 164). After considering the court’s findings and orders on the defendant’s motion to modify, the motion is denied.
The plaintiff seeks an order of attorneys fees (Motion # 165). The reasons were not addressed during the hearings on the defendant’s motion for contempt and motion to modify. The motion is denied without prejudice. The court notes that the defendant’s motion to modify has been granted. The plaintiff’s motion for order has been denied. The ability of the plaintiff and the defendant to pay the attorneys fees of the plaintiff was not addressed.
ORDERS
1. The defendant shall continue to have access/visitation with his daughter in a supervised agency and to telephone is daughter twice a week on Mondays and Thursdays from 7:00 p.m. to 7:30 p.m. The father shall purchase a cell telephone for his daughter and pay for the service to keep the telephone activated. The plaintiff shall not interfere with the telephone calls between the defendant and their child. The plaintiff shall encourage their child to speak with her father. Any objections or concerns regarding telephone calls between the defendant and their child shall be addressed by the plaintiff to the defendant through Family Wizard.
2. The plaintiff and the defendant shall reactivate their Family Wizard account to communicate with each other about the child. The plaintiff and the defendant shall respond to each other’s communications. The parties’ communications shall be limited to issues about their child.
3. The matter is referred to the Family Relations Division to monitor supervised visits. Both parties shall cooperate with Family Relations.
4. The plaintiff shall encourage the child to participate in the visitations. Neither parent shall make disparaging remarks about the other in front of the child.
5. The defendant is ordered to undergo a psychological evaluation to address his anger issues and receive counseling on how to best interact with his child and the people around him.
6. Counseling between the child and Patricia Hempel is ordered terminated.
7. The visits must be consistent and scheduled by parents on a regular basis.